The Gauteng High Court on Wednesday endorsed a settlement agreement reached between Council for the Advancement of the South African Constitution (CASAC) and the Judicial Service Commission (JSC) to rerun interviews for eight judges.
The initial interviews for the Constitutional Court vacancies were carried out in April 2021.
But the questions posed to some of the candidates sparked a controversy, with some describing them as “blatant politicking”.
CASAC launched an application in June to declare the conduct of the interviews unlawful.
The parties reached an agreement on a settlement of the litigation last week and requested that it be made an order of the court.
The draft order provided that the shortlist announced by the JSC in April 2021 be reviewed and set aside and that the JSC be directed to conduct fresh interviews of the eight candidates.
The move nullifies the April recommendations made by the JSC for the two ConCourt vacancies.
The JSC had recommended judges Rammaka Mathopo, Fayeeza Kathree-Setiloane, Jody Kollapen, Mahube Molemela, and Bashier Vally.
Earlier on Wednesday, a full-court comprising Legodi JP, Victor ADJP, and Ranchod J convened a hearing for the parties to address the court on whether such an order can legitimately be made.
This without the parties agreeing to review and set aside the interviews or without agreeing to a declaratory order that the conduct of the interviews was unlawful.
Adv Ngcukaitobi SC for CASAC argued that while the order was imperfect and did not satisfy all of its claims, it was nevertheless just and equitable in the circumstances.
He highlighted that without a settlement the case would drag on for some time, and the Constitutional Court would be plunged into crisis as there would be five vacancies on the court from October this year.
CASAC believed therefore that it is in the public interest for the matter to be settled so that the fresh interviews could proceed expeditiously, and the existing vacancies filled through a proper and lawful process.
Adv Maenetje SC for the JSC confirmed that his client was aware of the complaints about the interview process raised in CASAC’s founding affidavit, although they do not concede that the complaints are valid or that the interviews were unlawful.
Addressing Legodi JP’s concerns that without such a concession there might be no compulsion on the JSC to act differently, Maenetje SC assured the court that the JSC would run the fresh interviews fully aware of its constitutional obligations.
The court order directs the JSC to conduct fresh interviews of candidates, “who make themselves available for such interviews, provided that such candidates shall be limited to the list consisting of the third to tenth respondents”.
The JSC list announced in April 2021 for the appointment of two judges to the Constitutional Court (the decision) is reviewed and set aside.
The matter is remitted to the JSC for reconsideration. The JSC is ordered to pay the applicant’s costs, including the costs of two counsel.
While the order was handed down Wednesday morning, the court said it will consider whether it will provide reasons for its decision in due course.
CASAC will write to the JSC urging them to implement the order as a matter of urgency and re-run the interviews.
Two vacancies will arise in the Constitutional Court in October when Justices Sisi Virginia Khampepe and Jafta retire.
The JSC will re-advertise the vacancies, and if necessary, hold a special sitting to interview candidates for them.
